I have applied for a national patent and then I applied for a PCT claiming priority over the national patent and then I applied for a second national patent with improved content over the PCT just few days before the PCT was published. Now, I want to abandon the PCT and patent the content of the second national application which has improved/added matter over the PCT. Is that possible? I wonder if I can cancel the PCT and claim priority over the second national patent or cancel the PCT and claim priority over the PCT. I do not want to have to prove that my improved/added matter is novel and inventive over the PCT. Please note I am interested to get US and EU patents.

  • 1
    Don't enter the epo national phase and the pct won't be prior art there. For the US I don't know.
    – DonQuiKong
    Jan 15, 2021 at 22:02
  • @DonQuiKong - If the newest application is filed before publication of the PCT how can the epo national stage entry effect it as prior art?
    – George White
    Jan 15, 2021 at 22:21
  • 1
    @GeorgeWhite art 54(3) epc. The EPO considers non- published applications as prior art (only for novelty) only if they are EPO applications. PCT applications count as EPO applications only if nationalized. Afaik the US neither counts non-published foreign applications as prior, but I don't know how they deal with PCT applications that are not nationalized.
    – DonQuiKong
    Jan 16, 2021 at 7:20
  • @DonQuiKong thanks but the PCT is now published, so how can it not be prior art in the EPO? Also, I as I mention in my question, I am looking to get EP and US patents.
    – PCT-user
    Jan 16, 2021 at 10:08
  • It is not prior art for the second application filed prior to publication (subject to the above). By drawing priority from that second application you can go to EP while retaining the filing date.
    – DonQuiKong
    Jan 16, 2021 at 11:11


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